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Medicine on the defensive

Dr Christoph Lees, MD MRCOG, is Reader in Obstetrics and Fetal Medicine at Imperial College London; Honorary Consultant in Obstetrics and Head of Fetal Medicine at Imperial College Healthcare NHS Trust, Centre for Fetal Care, Queen Charlotte’s and Chelsea Hospital; Visiting Professor at the Department of Development and Regeneration, KU Leuven, Belgium; Founder, Doctors Policy Research Group, Civitas. His non-clinical interests are in the field of medical regulation and here he answers questions on the present and future development of this broad subject. Among his most recent non-clinical publications is a report on the general medical council, GMC – Fit to practise?

1. Are we inan era of defensive medicine? Ever since I was a medical student in the 1980s, junior doctor in the 1990s and consultant in the 2000s we have talked about ‘defensive medicine’. The truth is that medicine is only really as defensive as we want to make it as the public typically understand that good doctors should sometimes take risks on behalf of a patient. But since the millennium the practice of medicine has begun to change tangibly–and defensively. The three aspects of process that make medicine defensive is the civil law (medical negligence), increasingly the use of criminal law and regulatory processes. In many ways, we are crying out for a new compact between the medical profession and our patients: though medical negligence cases offer a fair route for redress, the criminal law is being used inappropriately and regulatory processes are an extremely blunt way of dealing with performance, and almost always act too late and end with an unrecoverable outcome.

2. How does this manifest itself typically?The classic situation is performing a cardiac operation on a severely sick patient: with open-heart surgery they may have a 50 per cent survival chance, without surgery less than 10 per cent. But which cardiac surgeon now wants to fall the wrong side of the mortality statistics? There is strong anecdotal evidence that there is a reluctance to treat in many (mainly surgical) fields and high risk but necessary operations are avoided. But it isn’t just surgery: In primary care there is never a penalty for inappropriately frequent referral, but there is for a failure to refer. In obstetrics, an unnecessary Caesarean is very rarely a reason to go to court. The effect of this is twofold: (1) inappropriate referral and investigation-which is both expensive and time consuming and (2) A ‘stifling’ of a doctor’s first duty, which is to act on behalf of the patient rather than to ‘watch their back’.

3. Have you been able to quantify the effect of erasure and suspension in terms of figures? The UK’s GMC publishes an annual report so these figures are publicly accessible (http://www.gmc-uk.org/SOMEP_2016_Full_Report_Lo_Res.pdf_68139324.pdf). The number of suspensions and erasures has increased ten-fold in 25 years and a doctor has a four per cent risk of a GMC complaint per year, as seen in the table below. The cumulative likelihood of a GMC complaint in a 35-year working career is over 50 per cent.

4. Doctors are good copy and make sensational headlines; journalists now do more work and check facts less than ever – is there a co-relation in these two facts that is deleterious for the medical profession? On the one hand, a free press is essential for the proper functioning of a mature civilized democracy, on the other an unfettered and irresponsible press can destroy careers, lives and families. It is certainly the case now that cases are poorly reported with ‘identikit’ stories emerging through different media outlets. A major problem is that although a doctor may be named and their practice commented on, the doctor has no ability to speak about the particular case under the spotlight, so is ‘sitting prey’. There should be some method of redressing this unjust balance, perhaps by preventing a doctor being named until an investigation is complete for fear of punitive damages. As I suggest later, the use of libel laws may be appropriate.

5. Where does social media figure in terms of doctors, complaints and the dissemination of half-truths, accusations and downright less about how doctors perform? This is widespread. You only have to look at well-known blog websites to see thinly veiled references to doctors and often disparaging remarks. Once again, the playing field is hopelessly biased against doctors and whilst a balance should be struck allowing free speech,there must be some redress for doctors whose reputations are unfairly traduced. I would favour the use of libel laws in this context. This is something that medical defence organisations are very un–keen to pursue–presumably on the basis that this would count against a doctor at a disciplinary hearing, and might be very costly to prosecute. But something must be done-this problem is only going to get worse.

6. Investigations – should there be a time-limit as this often affects the lives of doctors and their families? This has been a major problem with the GMC, and continues to be. Doctors contacting me often have cases on–going for several years. Despite the GMC apparently trying to tackle this, I don’t see much evidence of this improving. A particularly pernicious characteristic of investigations is the apparent ‘trawling’ exercises undertaken in order to bolster a case. There must be limits to the length of investigation: if a case cannot be brought within 12 months of the original complaint, then it should surely be dropped unless there are exceptional circumstances.

7. How can the GMC push on with current format when 25 per cent of their complaints are thrown out? This is a really interesting question. Of 8,269 complaints in 2015, 5,419 (66 per cent) were closed immediately. One hundred and ninety one-or 2.3 per cent– ended with suspension or erasure. These figures suggest that the system is grossly disproportionate: most complaints shouldn’t have been made, and of those that were investigated the ‘conviction’ rate (if I can put it like that) was incredibly low. Does this represent value for money–or an efficient use of resources? Almost certainly not. Some devolved method of local first line complaint investigation would at least allow only appropriate referrals to be made to the GMC.

8.If you had a magic wand, what reforms do you think could be implemented both from the GMC and doctors viewpoints which would bring about immediate improvement?The real change must be a political mind-setone. The NHS is a cash limited organisation and the GMC and its progressivelyharsher regulation regime that now insinuates itself into every aspect of a doctor’s personal and private life may be regarded as a useful means of controlling a notoriously independent minded workforce. In the junior doctor strikes in 2016, the GMC intervened in an unprecedented way warning doctors about the effect of their actions-despite the fact that (whatever ones views on this may be), industrial action is entirely legal. The time is right now for a ‘medical reformation,’ where the Victorian GMC is completely reformed and slimmed down to undertake its core function of maintaining a list of medical practitioners (and perhaps investigating the most serious transgressions), with region based medical tribunals taking its place. I wrote of the need for such a change in the BMJ in 2011 (http://www.bmj.com/content/342/bmj.d2895):“To move towards such a world would require, as happened in the late Middle Ages in Europe (then in a religious context), nothing less than a Reformation. It would require that the royal colleges regain their primacy in determining standards and directing postgraduate education; it would require that doctors renounce their corporate allegiances as de facto civil servants. And it would require the General Medical Council to tear itself away from its comfortable position as a Department of Health quasi-quango.”

9. Is revalidation a costly waste or a necessary step forward? Revalidation was introduced in 2012 following Dame Janet Smith’s recommendations in respect of the Shipman inquiry. Suggested by some as a method of improving healthcare by reflective practice, continuing medical education and appraisal and others as a method of catching bad or dangerous doctors, it has not demonstrably fulfilled either goal and with it has failed to win the support of doctors. Revalidation is regarded by most doctors on the shop floor as a costly misuse of time and resource. Tellingly, the GMC’s interim survey on revalidation found that about one third of doctors had a negative impression of revalidation, one third neutral and one third positive (http://www.gmc-uk.org/UMbRELLA_interim_report_FINAL.pdf_65723741.pdf). Over one half of those surveyed said that it made no difference to their practice. Furthermore, in this era of evidence based medicine, there isno evidence at all that it improves patient safety, improves the quality of medicine or that it picks up underperforming or dangerous doctors. This may be why few other countries undertake such a system. The immense bureaucracy associated with its introduction has undoubtedly created a burden for employing organisations. A perhaps unintended consequence is that several doctors nearing retirement simply cannot be bothered to undertake the process; this is a terrible shame-and waste of senior doctors whom we really should be doing everything we can to maintain in practice. In 2014, the GMC withdrew a licence from 24 doctors following a non-engagement recommendation and in 2015, this number increased to 62.